"The reasons of the learned Judges delivered in these Courts, stated shortly, are that according to their true construction the Quebec Succession Duty Acts only apply in the case of movables to transmission of property resulting from the devolution of a succession in the province of Quebec, or, in other words, that the taxes imposed by those Acts on movable property are imposed only on property which the successor claims under or by virtue of Quebec law, and that in the present case the several items in respect of which succession taxes are claimed form part of a succession devolving under the law of Ontario.

"The decisions of the Quebec Courts are, in their Lordships' opinion, entirely in consonance with well-established principles, which have been recognized in England in the well-known cases of Thomson v. Advocate-General 56; and Wallace v. Attorney-General 57; and by this Board in the case of Harding v. Commissioners of Stamps for Queensland.58

In Re Succession Duty Act and Walker, Hunter, C.J., B.C., expresses the view that the maxim mobilia sequuntur personam is inapplicable to the construction of succession duty enactments in Canada, notwithstanding the opinions to the contrary expressed by several of the Judges of the Supreme Court of Canada in the Smith case. In the course of his judgment, delivered on 9th February, 1922, he says:

"By the B. N. A. Act, the legislature is empowered to impose direct taxation within the province in order to raise, revenue for provincial purposes. There are, therefore, two limitations, namely, that the taxation must be direct, and that it must be within the province.

"Had the matter been res integra, giving the language the meaning which would be in accordance with the ordinary understanding of men, one might have said that this was not 'direct taxation within the province.'

60

"But the Supreme Court of Canada in Smith v. Provincial Treasurer of Nova Scotia, in construing a similar statute, only not so explicit in its terms as our own, have held that it is so by reason of the maxim mobilia sequuntur personam. The propriety of the application of this rule was re-affirmed by the Court in Barthe v. Alleyn-Sharples, although that case dealt with a Quebec statute

61

which is not in pari materia, as it imposes a duty on the transmission or succession and not on the property itself. This latter case came before the Judicial Committee, 2 but the Board rested its decision on the ground that as the transmission took place within the province to a person domiciled or resident within the province, the duty was lawfully imposed, and did not consider the applicability of the maxim to the construction of The B. N. A. Act."

In view of the conflict between the judicial opinion thus expressed by Hunter, C.J.B.C., in the Walker case, and that expressed by Davies, C.J., and Anglin, J., of the Supreme Court of Canada, in Smith v. Provincial Treasurer of Nova Scotia, it is to be hoped that the uncertainty which prevails as to the applicability of the maxim mobilia sequuntur personam to provincial succession duty laws may shortly be removed by a definite Privy Council pronouncement on this phase of the law.

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In concluding this article, a brief reference may be made to the well-known Privy Council decision in Attorney-General for Ontario v. Woodruff, in which it was held that the Ontario Succession Duty Act, R.S.O. 1897, c. 24, did not apply to movables situate outside the Province of Ontario which a domiciled inhabitant of that province had transferred in his lifetime with intent that the transfers should only take effect after his death. Anglin, J., in his judgment in the Smith case, in expressing the view that the maxim mobilia sequuntur personam is applicable to succession duties in Canada, proceeds to discuss the Woodruff case in the following terms: The only authority at all in conflict with this view is Woodruff v. Attorney-General for Ontario. But the conflict is more apparent than real. The property there in question consisted of bonds and debentures of a foreign company which were at the date of their transfer and remained in custody of a New York deposit company. The transmission of them was not by will or upon intestacy, but by instrument inter vivos, which took effect under the law of the State of New York. There was no succession or transmission by virtue of Ontario law. The ground on which the maxim mobilia sequuntur personam is applied in this case, therefore, did not exist in Woodruff's case."

Regina, Sask.

62 38 T. L. R. 131.

63 (1908) Appeal Cases, 508.

S. QUIGG.

THE CANADIAN BAR

REVIEW

THE CANADIAN BAR REVIEW is the organ of the Canadian Bar Association, and it is felt that its pages should be open to free and fair discussion of all matters of interest to the legal profession in Canada. The Editor, however, wishes it to be understood that opinions expressed in signed articles are those of the individual writers only, and that the REVIEW does not assume any responsibility for them.

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WOODROW WILSON.

Nec mihi mors gravis est! That is the splendid truth we learned of Woodrow Wilson as he lay dying. Nor is it to be thought that he welcomed the grim reaper as one weary of the world's ingratitude. "I am ready to go"! There we have an intimation of the real quality of the man-what he was in his heart of hearts. Those are not the words of one embittered of life-rather are they the brave words of him who is convinced that life is well spent in high endeavour even if achievement be small or wholly denied. It is common knowledge that his span of years was shortened by his unremitting labour at the close of the Great War to bring abiding peace to the world. That he failed in this noble ambition is charged by his critics to mistakes in method and failure to apprehend the manner of the men of destiny with whom he had to deal. Admitting all this as a fact, it is equally true that his ideal was too high for the spirit of his day. But he was beyond all doubt the herald of a dispensation that will surely come to pass in the world, and all the more quickly by reason of the sacrifice of mental gifts and bodily strength that he made for it. What Mommsen said of Caesar might with equal truth be said of Woodrow Wilson. "The brilliant attempts of great men to realize the ideal, although they do not reach their aim, form the best treasure of nations." As President of the United States he is worthy to be named with Washington and Lincoln, not so much for what he did for his country as for what he tried to do for the world.

But it is not as a notable figure in political history alone that we

do homage to the memory of ex-President Wilson. Long before he became that he had achieved distinction on the academic side of the legal profession. As Professor of Jurisprudence and Politics at Princeton for ten years he did much to advance the cause of sound legal education in the United States; and his work on "The State" ranks high as an authority in a science which if it does not embrace does at least intersect the domain of the law.

THE LATE MR. JUSTICE OSLER.

At the opening of the sitting of the First Divisional Court of the Appellate Division of the Supreme Court of Ontario, last month, the Honourable Sir William Mulock, Chief Justice of Ontario, addressing the Bar, said:

Gentlemen of the Bar:

It seems but yesterday that in this room we were all sharing one common grief over the great loss sustained by the country in the death of the late Sir William Meredith. Again to-day our heads are bowed in sorrow, for the great Harvester who with impartiality visits all homes, has now taken from our midst another great and good man, the late Mr. Justice Osler, one of a family which deservedly enjoys in a marked degree the respect of the people of Canada. It has given to the country four men, each of whom in his own particular career has attained enviable eminence. Mr. Justice Osler for nearly a third of a century adorned the Bench of his native province, and, throughout that long career, he so adjusted the scales of Justice as to command the respect of the Bench, the Bar, and the Country. To-day he sleeps in peace in his narrow bed, but he has bequeathed to his country a priceless and inspiring legacy, the ideal of the character of a man of unbending honesty of purpose, steadfastness in adherence to right, kindliness and gentleness of heart, charity towards all men. He has gone from our view-may the recollection of his character never fade from our memories.

In The Western Municipal News for December last there is a very interesting article by Sir James Aikins, President of the Canadian Bar Association, on "The Office of Lieutenant-Governor." After pointing out that the Lieutenant-Governor represents the Sovereign in the Province, and is an integral part of its Legislature, Sir James proceeds to say:

The duty of Lieutenant-Governor is in general terms clearly pointed out in section 62 of the British North America Act, that is, to carry on the Government of the Province.

"The Lieutenant-Governor is appointed not to do the will of the Federal Government but the considered will of the people of the Province and act in their interest always, but in accordance with historic principles and settled methods. His superior in the discharge of all official duties is deliberated public opinion. Subject to that if he has the will and capacity he may be a real as well as the nominal head of the Legislature and of the executive government of the Province. As has just been stated the Lieutenant-Governor is a part of the Legislature. As such his duties in respect of the introduction and passing of bills are light. He opens each session by a Speech from the Throne. If he were responsible for all that Speech contains, he would naturally come in for serious criticism, especially in the usual lengthy debate which follows it. He does not, however, for his ministers prepare it to express, not his, but their views and policies for which they assume full responsibility. He may confer with his first or other ministers about what it should contain; but if in conference with them they should adopt in it some of his suggestions (they are not obliged to do so) they would still sponsor the Speech and stand or fall accordingly. Another method by which the Lieutenant-Governor communicates with the elected members of the Legislature in Session is by official messages. These relate chiefly to the annual supply needed to carry on the work of government and its appropriation, to revenue and expenditure and to anything that will create a charge upon consolidated revenue fund or cause increased taxation.

"The principle is that any motion in the Legislature which will result in creating a charge upon the public revenue must have received the official recommendation of the Lieutenant-Governor. It is based on the fact that the representative of the Sovereign having the executive power is charged with the management of all the revenues of the Province and with all payments of the public services. Accordingly the Crown demands money, the Legislature grants it, but the Legislature does not vote money unless it is required by the Crown, nor does. it impose or augment taxes unless it is declared by the Crown through its constitutional advisers that such taxation is necessary.

"Non-observance of the principles above stated would render parliamentary government on the basis of the party system impossible, owing to outside pressure to which unofficial members would be subjected to obtain financial assistance for local or class needs and enterprises."